STATE OF MADHYA PRADESH AND OTHERS versus ABHIJIT SINGH PAWAR

[2018] 13 S.C.R. 1133

STATE OF MADHYA PRADESH AND OTHERS

ABHIJIT SINGH PAWAR

(Civil Appeal No. 11356 of 2018)

NOVEMBER 26, 2018

[UDAY UMESH LALIT ANDDR. DHANANJAYA Y. CHANDRACHUD, JJ.]

Service law: Appointment – Antecedents and suitability of thecandidate – Consideration of – On facts, the respondent participatedin the selection process for posts of subedars, platoon commandersand inspectors of police – Disclosure made in an affidavit that acriminal case is pending against him – Within four days compromiseentered into between the parties and application for compoundingof the offences allowed – Thereafter, the respondent was selectedin the written examination, however, after considering his characterverification report, his candidature was rejected – Writ petitionthereagainst allowed by the Single Judge of the High Court – Saidorder upheld by the Division Bench – On appeal, held: Even afterthe disclosure is made by candidate, the employer would be wellwithin his rights to consider the antecedents and the suitability ofthe candidate – Employer can certainly take into account the jobprofile for which the selection is undertaken, the severity of thecharges levelled against the candidate and whether the acquittalwas an honourable acquittal or was merely on the ground of benefitof doubt or as result of composition – On facts, nothing on recordto suggest that the decision of rejecting the candidature ofrespondent was actuated by mala fides or suffered on any othercount – Thus, the order passed by the High Court is set aside.

Allowing the appeal, the Court

HELD: 1.1 In the instant case, as on the date when therespondent had applied, criminal case was pending against him.Compromise was entered into only after an affidavit disclosingsuch pendency was filed. Even after the disclosure is made by acandidate, the employer would be well within his rights to considerthe antecedents and the suitability of the candidate. While soconsidering, the employer can certainly take into account the job

Aprofile for which the selection is undertaken, the severity of thecharges levelled against the candidate and whether the acquittalin question was an honourable acquittal or was merely on theground of benefit of doubt or as result of composition.[Para 15][1145-B-D]

B1.2 There is nothing on record to suggest that the decisiontaken by the concerned authorities in rejecting the candidatureof the respondent was in any way actuated by mala fides or sufferedon any other count. The decision on the question of suitability ofthe respondent was absolutely correct and did not call for anyinterference. The decisions rendered by the Single Judge as wellCas by the Division Bench are set aside. [Para 17][1145-G-H]

Commissioner of Police, New Delhi and another v.Mehar Singh (2013) 7 SCC 685 : [2013] 13 SCR 432;State of Madhya Pradesh and others v. Parvez Khan(2015) 2 SCC 591; Union Territory, ChandigarhDAdministration and others v. Pradeep Kumar andanother (2018) 1 SCC 797 : [2018] 1 SCR 112; AvtarSingh v. Union of India and others (2016) 8 SCC 471 :[2016] 7 SCR 445; Mohammed Imran v. State ofMaharashtra and others 2018 (10) JT 15 - referredEto.

GFrom the Judgment and Order dated 22.09.2015 of the High Courtof Madhya Pradesh, Bench at Indore in Writ Appeal No. 132 of 2015.

Rajesh Srivastava, Adv. for the Appellants.

Siddhartha Dave, (A.C.), Ms. Jantiben AO, Advs. for theRespondent.H

The Judgment of the Court was delivered by

UDAY UMESH LALIT, J. 1. Leave granted. This appealchallenges correctness of the judgment and order dated 22.09.2015passed by the High Court of Madhya Pradesh at Indore in Writ AppealNo.132 of 2015.

2. In 2012, the Professional Examination Board, Madhya Pradeshinvited applications for filling up the posts of Subedars, PlatoonCommanders and Inspectors of Police. Clause 1.13 of the advertisementdealt with character verification of the candidates. True translation ofsaid clause 1.13 along with Note appended thereto was to the followingeffect:

“1.13 Appointment: The character verification shall be carriedout about the selected candidates and the appointment only of thecandidates found in the selection list upon finding them fit incharacter. The medical examination of the candidates also shallbe conducted. The candidate to be medically fit for the entitlementof the appointment is also required.

Note: To save time and for the convenience, the verification formis sent earlier to the candidates declared fit to sit in the physicalfitness examination, which the candidates have to submit afterfilling up and the character and earlier verification of all thecandidates to appear in interview is made. The candidate who isnot selected, his form will not used further. The candidates shouldfill up full and correct information in the character verificationform. They should not provide any false information, incompleteinformation and semi true information. They should not concealany information as well. Particularly it is required to fill up thecorrect information in column no.12. Now according to the newguidelines of Madhya Pradesh Government regarding characterverification, to give the undertaking to this effect is required thathe has not concealed any fact in the details given by him earlierabout the criminal cases.”

3. The respondent participated in the selection process and asmandated, tendered an affidavit on 22.12.2012 disclosing followinginformation:

A“I affirm on oath that Case No.592/06 under Sections 323, 325,506, 34 was registered in Police Station Madhav Nagar againstme the deponent. I the deponent myself had come to the court. Iwas never arrested. The aforesaid case is pending in the Court.In addition no criminal record is registered in any police stationanywhere in India, nor has the deponent convicted by the Court inBany criminal case.”

4. According to the disclosure, case registered in the year 2006was pending on the date when the affidavit was tendered. However, itappears that within four days, compromise was entered into betweenthe original complainant and the respondent and an application forcompounding the offences was filed under Section 320 Code of CriminalProcedure. True translation of relevant portions of the proceedings dated26.12.2012 before the Judicial Magistrate, First Class, Ujjain, M.P. is asunder:

“The case was perused. This case is listed for the presenceDof the accused. The accused was taken in judicial custody. …….

The bond forfeiture amount on behalf of the accused wasdeposited in compliance with the order, vide receipt No.85. Thereceipt was given to the accused….

At this very stage, Rajiv Rawat submitted an application forcompromise under Section 320(2) Cr.P.C. and expressed that acompromise has been made between him and the accused personsso the permission for compounding be granted. Copy of theapplication was given to ADPO. The remaining accused personswith Sashank Advocate are present. I heard the matter regardingcompromise. The case was perused.

It is clear from perusal that the case being of offences underSections 294, 325/34, 323, 506 Part-2, IPC is fit for compromise.The present complainant is competent party for the compromise.Hence, the permission for compounding can be granted.

The parties submitted deed of compromise, jointly signedhaving photographs. The parties were identified by their counsel.Both the parties have stated that the compromise was arrived atvoluntarily without any fear and pressure. Hence, the applicationfor compounding was allowed after verification. As result of

the composition, the accused persons are acquitted of the chargesunder Sections 294, 325/34, 323, 506 Part-2 IPC.

The bail bonds of the accused persons are discharged.”

5. The proceedings, thus, indicate that the amount of bond submittedon the earlier occasion had been forfeited for non-compliance; that therespondent was taken in judicial custody and that after the compromisewas entered into between the parties, the application for compoundingof the offences was allowed.

6. The respondent was selected in the written examination andwas called for medical examination. Around the same time, his characterverification was also undertaken. After due consideration of characterverification report, the candidature of the respondent was howeverrejected vide order dated 19.07.2013 passed by the Additional DirectorGeneral of Police (Selection/Recruitment), Police Headquarters, Bhopal.Said order observed as under:-

“3-B The services of the persons seeking uniform service/employment comes under the category different from otherservices and candidates. The duty of the candidates selected isto maintain law and order of the State and to protect the life andproperty of the public. The high moral conduct and not to beinvolved in the criminal activities is required for the police service.

3-C According to the principles about the excellent conduct withthe Government in respect of the Government Servants, theGovernment Servants should be of high character. Since theofficers of the Police Department are responsible to control thepersons of criminal nature, it is not proper to appoint the personsof criminal record in public interest.”

7. The respondent being aggrieved, filed Writ Petition No.9412 of2013 before the High Court of Madhya Pradesh at Indore challengingthe aforesaid order dated 19.07.2013. Single Judge of the High Courtallowed said writ petition and directed as under:

“… The petitioner shall be appointed in case his name finds placein the merit list and is entitled to be appointed as per merit. Thepetitioner shall be entitled for all consequential benefits, exceptback wages.”

8. The State challenged the decision of the Single Judge by filingWrit Appeal No.132 of 2015, which challenge was found to be withoutany merit by the Division Bench. The view taken by the Single Judgewas thus affirmed by the Division Bench vide its judgment and orderdated 22.09.2015 which decision is presently under challenge.

B9. Since the respondent, despite being served in the matter hadchosen not to enter appearance, this Court requested Mr. SiddharthaDave, learned Advocate to assist as Amicus Curiae and appear on behalfof the respondent. We heard Mr. Rajesh Srivastava, learned Advocatefor the State and Mr. Siddhartha Dave, learned Amicus Curiae for therespondent.C

10. It was submitted by Mr. Rajesh Srivastava, learned Advocatethat in terms of Rule 12(3) of M.P. Police Executive (Non-Gazetted)Services Recruitment Rules, 1996, inclusion of candidate’s name inthe list would not confer any right to appointment and that candidatehad to be found suitable in all respects before he could be appointed.DRelying on the decisions of this Court in Commissioner of Police, NewDelhi and another v. Mehar Singh[1], State of Madhya Pradesh andothers v. Parvez Khan[2] and Union Territory, ChandigarhAdministration and others v. Pradeep Kumar and another[3]hesubmitted that the candidature of the respondent was rightly rejectedEand there being no allegation of mala fides, no interference with thedecision in question was called for. Mr. Siddhartha Dave, learned AmicusCuriae, on the other hand, submitted that by virtue of Section 320(8) ofCr.P.C. composition of an offence would have the effect of an acquittal.He further submitted that the respondent had not suppressed anyinformation and he having been acquitted, the High Court was right inFaccepting his challenge. Mr. Dave further relied upon the decisions ofthis Court in Avtar Singh v. Union of India and others[4] and In

Mohammed Imran v. State of Maharashtra and others[5].

11. In Mehar Singh (supra) the selection in question was for thepost of Constable (Executive). The offences alleged against MeharGSingh were under Sections 341, 323 and 427 of the IPC. He had arrived

1 (2013) 7 SCC 6852 (2015) 2 SCC 5913 (2018) 1 SCC 7974 (2016) 8 SCC 4715 In Civil Appeal No.10571 of 2018, decided on 12.10.2018.H

at compromise with the complainant and in terms of the compromise,Mehar Singh and other co-accused were acquitted of the offences underSections 323, 341 and 427 of the IPC on 30.01.2009. In the selectionwhich was undertaken thereafter, said Mehar Singh had disclosed thefactum regarding his involvement and his acquittal. His candidaturewas, however cancelled in terms of the concerned Standing Order. Thechallenge raised by him was accepted by the Administrative Tribunaland the Delhi High Court. But this Court reversed said decisions andthe observations in paragraphs 23, 24, 25, 33 to 35 of the decision of thisCourt are quite relevant for the present purposes:-

“ 23. careful perusal of the policy leads us to conclude that theScreening Committee would be entitled to keep persons involvedin grave cases of moral turpitude out of the police force even ifthey are acquitted or discharged if it feels that the acquittal ordischarge is on technical grounds or not honourable. The ScreeningCommittee will be within its rights to cancel the candidature of acandidate if it finds that the acquittal is based on some seriousflaw in the conduct of the prosecution case or is the result ofmaterial witnesses turning hostile. It is only experienced officersof the Screening Committee who will be able to judge whetherthe acquitted or discharged candidate is likely to revert to similaractivities in future with more strength and vigour, if appointed, to

the post in police force. The Screening Committee will have toconsider the nature and extent of such person’s involvement inthe crime and his propensity of becoming cause for worseningthe law and order situation rather than maintaining it. In our opinion,this policy framed by the Delhi Police does not merit anyinterference from this Court as its object appears to be to ensurethat only persons with impeccable character enter the police force.

24. We find no substance in the contention that by cancelling therespondents’ candidature, the Screening Committee hasoverreached the judgments of the criminal court. We are awarethat the question of co-relation between criminal case and adepartmental enquiry does not directly arise here, but, supportcan be drawn from the principles laid down by this Court inconnection with it because the issue involved is somewhat identical,namely, whether to allow person with doubtful integrity to workin the department. While the standard of proof in criminal case

is the proof beyond all reasonable doubt, the proof in departmentalproceeding is preponderance of probabilities. Quite often criminalcases end in acquittal because witnesses turn hostile. Suchacquittals are not acquittals on merit. An acquittal based on benefitof doubt would not stand on par with clean acquittal on meritafter full-fledged trial, where there is no indication of thewitnesses being won over. In R.P. Kapur v. Union of India[6] thisCourt has taken view that departmental proceedings can proceedeven though person is acquitted when the acquittal is other thanhonourable.

25. The expression “honourable acquittal” was considered bythis Court in S. Samuthiram[7]. In that case this Court wasconcerned with situation where disciplinary proceedings wereinitiated against police officer. Criminal case was pending againsthim under Section 509 IPC and under Section 4 of the Eve-TeasingAct. He was acquitted in that case because of the non-examinationof key witnesses. There was serious flaw in the conduct of thecriminal case. Two material witnesses turned hostile. Referringto the judgment of this Court in RBI v. Bhopal Singh Panchal[8],where in somewhat similar fact situation, this Court upheld bank’saction of refusing to reinstate an employee in service on the groundthat in the criminal case he was acquitted by giving him benefit ofdoubt and, therefore, it was not an honourable acquittal, this Courtheld that the High Court was not justified in setting aside thepunishment imposed in the departmental proceedings. This Courtobserved that the expressions “honourable acquittal”, “acquittedof blame” and “fully exonerated” are unknown to the CriminalProcedure Code or the Penal Code. They are coined by judicialpronouncements. It is difficult to define what is meant by theexpression “honourably acquitted”. This Court expressed thatwhen the accused is acquitted after full consideration of theprosecution case and the prosecution miserably fails to prove thecharges levelled against the accused, it can possibly be said thatthe accused was honourably acquitted.

6 AIR 1964 SC 787

7 (2013) 1 SCC 598

8 (1994) 1 SCC 541

33. So far as respondent Mehar Singh is concerned, his caseappears to have been compromised. It was urged that acquittalrecorded pursuant to compromise should not be treated as adisqualification because that will frustrate the purpose of the LegalServices Authorities Act, 1987. We see no merit in this submission.Compromises or settlements have to be encouraged to bring aboutpeaceful and amiable atmosphere in the society by according aquietus to disputes. They have to be encouraged also to reducearrears of cases and save the litigants from the agony of pendinglitigation. But these considerations cannot be brought in here. Inorder to maintain integrity and high standard of police force, theScreening Committee may decline to take cognizance of acompromise, if it appears to it to be dubious. The ScreeningCommittee cannot be faulted for that.34. The respondents are trying to draw mileage from the factthat in their application and/or attestation form they have disclosedtheir involvement in criminal case. We do not see how this factimproves their case. Disclosure of these facts in the application/attestation form is an essential requirement. An aspirant isexpected to state these facts honestly. Honesty and integrity areinbuilt requirements of the police force. The respondents shouldnot, therefore, expect to score any brownie points because of thisdisclosure. Besides, this has no relevance to the point in issue. Itbears repetition to state that while deciding whether personagainst whom criminal case was registered and who was lateron acquitted or discharged should be appointed to post in thepolice force, what is relevant is the nature of the offence, theextent of his involvement, whether the acquittal was cleanacquittal or an acquittal by giving benefit of doubt because thewitnesses turned hostile or because of some serious flaw in theprosecution, and the propensity of such person to indulge in similaractivities in future. This decision, in our opinion, can only be takenby the Screening Committee created for that purpose by the DelhiPolice. If the Screening Committee’s decision is not mala fide oractuated by extraneous considerations, then, it cannot bequestioned.

A35. The police force is disciplined force. It shoulders the greatresponsibility of maintaining law and order and public order in thesociety. People repose great faith and confidence in it. It must beworthy of that confidence. candidate wishing to join the policeforce must be person of utmost rectitude. He must haveimpeccable character and integrity. person having criminalBantecedents will not fit in this category. Even if he is acquitted ordischarged in the criminal case, that acquittal or discharge orderwill have to be examined to see whether he has been completelyexonerated in the case because even possibility of his taking tothe life of crimes poses threat to the discipline of the policeCforce. The Standing Order, therefore, has entrusted the task oftaking decisions in these matters to the Screening Committee.The decision of the Screening Committee must be taken as finalunless it is mala fide. In recent times, the image of the policeforce is tarnished. Instances of police personnel behaving in awayward manner by misusing power are in public domain andDare matter of concern. The reputation of the police force hastaken beating. In such situation, we would not like to dilute theimportance and efficacy of mechanism like the ScreeningCommittee created by the Delhi Police to ensure that personswho are likely to erode its credibility do not enter the police force.EAt the same time, the Screening Committee must be alive to theimportance of the trust reposed in it and must treat all candidateswith an even hand.”

12. The conclusions in Mehar Singh (supra) have been followedand the principles reiterated by this Court in later decisions, namely inFState of M.P. v. Parvez Khan (supra) and in Union Territory,Chandigarh Administration and others v. Pradeep Kumar andanother (supra).

13. three Judge Bench of this Court in Avtar Singh v. Union ofIndia (supra) was required to consider the difference of opinion inGdecisions of this Court on the question of suppression of information orsubmission of false information in the verification form on issues pertainingto involvement in criminal cases and the effect thereof. The law on thepoint was settled by this Court in following terms in paragraph No. 38 ofits decision as under:

“38. We have noticed various decisions and tried to explain andreconcile them as far as possible. In view of the aforesaiddiscussion, we summarise our conclusion thus:

38.1. Information given to the employer by candidate as toconviction, acquittal or arrest, or pendency of criminal case,whether before or after entering into service must be true andthere should be no suppression or false mention of requiredinformation.

38.2. While passing order of termination of services or cancellationof candidature for giving false information, the employer may takenotice of special circumstances of the case, if any, while givingsuch information.

38.3. The employer shall take into consideration the governmentorders/instructions/rules, applicable to the employee, at the timeof taking the decision.

38.4. In case there is suppression or false information ofinvolvement in criminal case where conviction or acquittal hadalready been recorded before filling of the application/verificationform and such fact later comes to knowledge of employer, any ofthe following recourses appropriate to the case may be adopted:

38.4.1. In case trivial in nature in which conviction had beenrecorded, such as shouting slogans at young age or for pettyoffence which if disclosed would not have rendered an incumbentunfit for post in question, the employer may, in its discretion, ignoresuch suppression of fact or false information by condoning thelapse.

38.4.2. Where conviction has been recorded in case which is nottrivial in nature, employer may cancel candidature or terminateservices of the employee.

38.4.3. If acquittal had already been recorded in case involvingmoral turpitude or offence of heinous/serious nature, on technicalground and it is not case of clean acquittal, or benefit ofreasonable doubt has been given, the employer may consider allrelevant facts available as to antecedents, and may take appropriatedecision as to the continuance of the employee.

38.5. In case where the employee has made declaration truthfullyof concluded criminal case, the employer still has the right toconsider antecedents, and cannot be compelled to appoint thecandidate.

38.6. In case when fact has been truthfully declared in characterBverification form regarding pendency of criminal case of trivialnature, employer, in facts and circumstances of the case, in itsdiscretion, may appoint the candidate subject to decision of suchcase.

38.7. In case of deliberate suppression of fact with respect tomultiple pending cases such false information by itself will assumesignificance and an employer may pass appropriate ordercancelling candidature or terminating services as appointment ofa person against whom multiple criminal cases were pending maynot be proper.

38.8. If criminal case was pending but not known to the candidateat the time of filling the form, still it may have adverse impact andthe appointing authority would take decision after considering theseriousness of the crime.

38.9. In case the employee is confirmed in service, holdingEdepartmental enquiry would be necessary before passing orderof termination/removal or dismissal on the ground of suppressionor submitting false information in verification form.

38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only suchinformation which was required to be specifically mentioned hasFto be disclosed. If information not asked for but is relevant comesto knowledge of the employer the same can be considered in anobjective manner while addressing the question of fitness.However, in such cases action cannot be taken on basis ofsuppression or submitting false information as to fact whichGwas not even asked for.

38.11. Before person is held guilty of suppressio veri or suggestiofalsi, knowledge of the fact must be attributable to him.”

14. In Avtar Singh (supra), though this Court was principallyconcerned with the question as to non-disclosure or wrong disclosure of

information, it was observed in paragraph 38.5 that even in cases wherea truthful disclosure about concluded case was made, the employerwould still have right to consider antecedents of the candidate andcould not be compelled to appoint such candidate.

15. In the present case, as on the date when the respondent hadapplied, criminal case was pending against him. Compromise wasentered into only after an affidavit disclosing such pendency was filed.On the issue of compounding of offences and the effect of acquittalunder Section 320(8) of Cr.P.C., the law declared by this Court in MeharSingh (supra), specially in paragraphs 34 and 35 completely concludesthe issue. Even after the disclosure is made by candidate, the employerwould be well within his rights to consider the antecedents and thesuitability of the candidate. While so considering, the employer cancertainly take into account the job profile for which the selection isundertaken, the severity of the charges levelled against the candidateand whether the acquittal in question was an honourable acquittal orwas merely on the ground of benefit of doubt or as result of composition.

16. The reliance placed by Mr. Dave, learned Amicus Curiae onthe decision of this Court in Mohammed Imran (supra) is not quitecorrect and said decision cannot be of any assistance to the respondent.In para 5 of said decision, this Court had found that the only allegationagainst the appellant therein was that he was travelling in an auto-rickshaw which was following the auto-rickshaw in which the primeaccused, who was charged under Section 376 IPC, was travelling withthe prosecutrix in question and that all the accused were acquitted asthe prosecutrix did not support the allegation. The decision in MohammedImran (supra) thus turned on individual facts and cannot in any way besaid to have departed from the line of decisions rendered by this Court inMehar Singh (supra), Parvez Khan (supra) and Pradeep Kumar(supra).

17. We must observe at this stage that there is nothing on recordto suggest that the decision taken by the concerned authorities in rejectingthe candidature of the respondent was in any way actuated by malafides or suffered on any other count. The decision on the question ofsuitability of the respondent, in our considered view, was absolutely correctand did not call for any interference. We, therefore, allow this appeal,set aside the decisions rendered by the Single Judge as well as by the

ADivision Bench and dismiss Writ Petition No.9412 of 2013 preferred bythe respondent. No costs.

18. Before we part, we must record our appreciation for the effortsput in by Mr. Siddharth Dave, learned Amicus Curiae and the assistancerendered by him.

Nidhi Jain

Appeal allowed.